Madhya Pradesh High Court
Sunil vs The State Of Madhya Pradesh on 22 June, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar, Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
CRIMINAL APPEAL No. 128 of 2012
Between:-
RANJEET SINGH S/O ASHOK , AGED
ABOUT 25 YEARS, OCCUPATION:
DRIVER VISHAL NAGAR BANGANGA
INDORE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI VIVEK SINGH, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH
GOVT. THROUGH POLICE STATION
BANGANGA INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI AMIT SINGH SISODIA, G.A.)
CRIMINAL APPEAL No. 129 of 2012
Between:-
1. INDERSINGH AND ANR. S/O
PESTASINGH , AGED ABOUT 28 YEARS,
OCCUPATION: SERVICE 33/2
BANGANGA INDORE (MADHYA
PRADESH)
Digitally signed by KHEMRAJ JOSHI
Date: 2022.06.23 16:18:17 +05'30'
2
2. VIKRAM S/O MAHADEV , AGED ABOUT
25 YEARS, OCCUPATION: DRIVER
BANGANGA,INDORE (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI VIVEK SINGH, ADCOVATE )
AND
THE STATE OF MADHYA PRADESH
GOVT. THROUGH POLICE STATION
BANGANGA DISTT.INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI AMIT SINGH SISODIA, G.A.)
CRIMINAL APPEAL No. 158 of 2012
Between:-
SHAILU @ SHAILENDRA S/O
KISHANLAL JAISWAL , AGED ABOUT 30
YEARS, OCCUPATION: LABOUR 490/5
MUKHERJEE NAGAR INDORE
P.S.BANGANGA INDORE (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI ABHAY SARASWAT, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH
GOVT. THRU.P.S.BANGANGA INDORE
(MADHYA PRADESH)
.....RESPONDENTS
3
(BY SHRI AMIT SINGH SISODIA, G.A.)
CRIMINAL APPEAL No. 167 of 2012
Between:-
1. SONU @ J.K. AND ANR. S/O
BADRIPRASAD , AGED ABOUT 24
YEARS, OCCUPATION: LABOUR
CHHOTI KUMHAR KHEDI INDORE
(MADHYA PRADESH)
2. AMARDEEP S/O BALWANT , AGED
ABOUT 24 YEARS, OCCUPATION:
SERVICE BANGANGA NAKA (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI AMIT TRIPATHI, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH
GOVT. THROUGH POLICE STATION
BANGANGA INDORE DISTT.INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMIT SINGH SISODIA, G.A.)
CRIMINAL APPEAL No. 187 of 2012
Between:-
GOLU @ GOLDI S/O JOSEPH DANIEL ,
AGED ABOUT 20 YEARS, OCCUPATION:
LABOUR BANGANGA NAKA,INDORE
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI MANISH SANKHLA, ADVOCATE )
4
AND
DISTRICT COLLECTOR THE STATE OF
MADHYA PRADESH GOVT. INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMIT SINGH SISODIA, G.A.)
CRIMINAL APPEAL No. 247 of 2012
Between:-
JITENDRA S/O LAXMINARAYAN , AGED
ABOUT 27 YEARS, OCCUPATION:
HAMMALI BARGANGA INDORE
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI M.K. SHARMA, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH
GOVT. THROUGH POLICE STATION
BARGANGA INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI AMIT SINGH SISODIA, G.A.)
CRIMINAL APPEAL No. 533 of 2012
Between:-
SUNIL S/O PREMNARAYAN , AGED
ABOUT 25 YEARS, OCCUPATION:
PHOTOGRAPHY BANGANGA INDORE
(MADHYA PRADESH)
.....APPELLANT
5
(BY SHRIA.S. RATHORE, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH
GOVT. THRU. P.S. BANGANGA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMIT SINGH SISODIA, G.A.) )
____________________________________________________
Reserved on : 20/04/2022
Delivered on : 22/06/2022
____________________________________________________
This appeal coming on for order/judgment this day,
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR passed the
following:
:: JUDGMENT ::
(Passed on 22/06/2022) 1] Apart from the present Criminal Appeal No.128/2012 filed by the appellant Ranjeet Singh, this judgment shall also govern the disposal of Cr.A. No.129/2012 filed by the appellants Indersingh and Vikram, Cr.A. No.167/2012 filed by appellants Sonu @ J.K. and Amardeep, Cr.A. No.247/2012 filed by the appellant Jitendra, Cr.A. No.187/2012 filed by appellant Golu @ Goldi, Cr.A. No.158/2012 filed by the appellant Shailu @ Shailendra and Cr.A. No.533/2012 filed by the appellant Sunil as all the appeals Digitally signed by KHEMRAJ JOSHI Date: 2022.06.23 16:18:49 +05'30' 6 have arisen out of the common judgment dated 19/01/2012 passed in S.T. No.359/2006 by the Ninth Additional Sessions Judge, Indore (M.P.) whereby finding the appellants guilty, the learned Judge of the Trial Court has convicted the appellants as under:-
Conviction Sentence
Accused Section Act Imprisonment Fine Imprisonme
nt in lieu of
fine
Ranjeet Singh 147, 302/149 IPC 1 Year RI / Life 100/- each 1 Month RI
imprisonment
Indersingh and 147, 302/149 IPC 1 Year RI / Life 100/- each 1 Month RI
Vikram imprisonment
148, 452, IPC 2 Years RI / 2 100/- each 1 Month RI
Shailu @ 302/149 Years RI / Life
Shailendra imprisonment
25(1-b)(a) Arms Act 1 Year RI 100/- 1 Month RI
Golu @ Goldi 148, 302/149 IPC 2 Years RI / Life 100/- each 1 Month RI
imprisonment
Jintemdra 148, 302/149 IPC 2 Years RI / Life 100/- each 1 Month RI
imprisonment
Sunil @ Ramjane 147, 452, IPC 1 Year RI / 2 100/- each 1 Month RI
302/149 Years RI / Life
imprisonment
Sonu @ J.K. and 147, 302/149 IPC 1 Year RI / Life 100/- each 1 Month RI
Amardeep imprisonment
2] In brief, the facts giving rise to the aforesaid appeals are that
on 11/07/2006, an FIR was lodged by the complainant Pw/5 Sanjay stating that he is a resident of Mukharji Nagar, Gali No.2 where at around 12:30 in night, while he was sleeping, Goldi, Ramjane, Shailu and Machchi broke opened the doors of his house and Goldi who was holding a sword, threatened him not to get up and while Goldi and Ramjane remained with him, Shailu, Machchi and other 7 person went upstairs. They were also accompanied by 5-6 other persons and from the first floor, they dragged deceased Narendra @ Bablu out of his room and took him out to the street where in front of the house of Gopal and Rambudane, he was assaulted by all the accused persons and a gun shot was also fired on his head. It was also stated by Pw/5 Sanjay that the entire incident has also been witnessed by Bablu's wife Pw/4 Sona. It was also stated that after hearing the commotion, Manoj, Yogi and others also came to the spot and seeing them, all the accused persons ran away from the spot. Bablu was taken to M.Y. Hospital by this witness Sanjay along with Pw/6 Manoj and Pw/1 Vikram where he was declared dead. This report was registered by PW/25 Tarunendra Singh and proved as Ex.P/6. A Marg was also registered and investigation ensued. During the course of investigation, the statements of the witnesses were recorded and the accused persons were arrested and various weapons were also recovered from them. From the possession of appellant Shailendra, a country made pistol was also recovered vide Ex.P/19. From the possession of appellants Ramjane and Sunil, iron rods were recovered and from possession of appellant Golu @ Goldi, a sword vide Ex.P/17 and Ex.P/22 and from possession of Jitendra @ J.D., a sword has been recovered. Amardeep @ Machchi got recovered a belt. From the possession of appellant Ranjeet, a stick has been recovered. Subsequently the charge sheet was filed and the accused persons were put to trial 8 before the Trial Court and the learned judge, vide its impugned judgment has convicted them as aforesaid.
3] Shri Vivek Singh, learned counsel appearing for the appellant Ranjeet Singh in Cr.A. No.128/2012 and appellants Indersingh and Vikram in Cr.A. No.129/2012 has submitted that the names of these appellants Ranjeet Singh, Indresingh and Vikramsingh also did not find place in the FIR and the prosecution has not been able to prove its case beyond reasonable doubt and there are many omissions and contradictions in the depositions of the prosecution witnesses. In such circumstances, the conviction awarded to the appellants cannot be sustained.
4] Counsel has drawn the attention of this Court to the deposition of PW/1 Vikram, the father of the deceased, who has stated that prior in the day i.e. 10/07/2006, a dispute took place between the deceased Narendra on one hand and Shailu, Goldi, Machchi, Ramjane, Pappi, Jacky @ Hanuman, Jitendra and others and they had also assaulted his son Narendra at that time. It is submitted that this witness Vikram was not present on the spot when the incident took place as he himself has stated that at the time when the incident took place, his younger son Manoj came running to their house and informed that the accused persons are assaulting Narendra and thereafter he started towards the place of incident from his home along with other family members. This witness has also admitted that he and his son Bablu, the deceased have also faced externment proceedings wherein they were externed 9 from the district Indore and he himself has also been detained under the provisions of National Security Act. Thus, it is submitted by the counsel that a person with tainted background cannot be relied upon.
5] Counsel has laid special emphasis on the fact that even according to this witness Pw/1 Vikram, he had heard a gunshot fired, however, there was no gunshot injury suffered by the deceased. This witness has also admitted that he knows Shailu for quite some time and the dispute between the deceased Bablu and appellant Shailu was only pursuant to staring each other which led to the deceased Narendra, Manoj, Nitesh giving a beating to the appellant Shailu who had also lodged a police report regarding this incident. Counsel has submitted that this witness, despite being father of the deceased has not lodged the FIR himself and asked the other person Pw/9 Sanju to lodge the same which creates reasonable doubt about the veracity of the prosecution case. He has denied that the deceased Bablu was found lying on the road and somebody informed him and thereafter, his younger son Manoj took Bablu to the hospital. He has also been suggested that at the time of incident, there was no light available, to which, he has stated that at the time when the incident took place, there was a street light on road, although he has feigned ignorance as to why this fact has not been stated in his 161 statement Ex.D/1.
6] Similarly, PW/3 Sanni happens to be a chance witness, he is the nephew of PW/1 Vikram in whose house he had gone in the 10 night to sleep, he has also narrated the same story that Manoj came to their house at around 12-12:15 am and informed them about Bablu being assaulted by the accused persons and when they reached on the spot, they saw the appellants assaulting the deceased.
7] Shri Singh, learned counsel has also submitted that the wife of the deceased, Pw/4 Sona, has although named the appellants, however, her testimony needs to be examined cautiously as she appears to have lied regarding her marriage with the deceased and also about her religion. It is submitted that Pw/4 Sona has admitted that in her 161 statement, she has not named J.D. @ Jitendra and Machchi's name, however, she has stated that she was too afraid at that time. Her attention is also drawn to police statement wherein she has not mentioned that Machchi and J.D. were having knives in their hands.
8] Counsel has also drawn the attention of this Court to the deposition of PW/5 Sanjay the person who had lodged the report wherein in para 34 he is cross examined regarding the certain omissions in his FIR Ex.P/5. Attention of this Court is also drawn to the testimony of PW/14 Suman, the mother of the deceased and PW/6 Manoj, the brother of the deceased. In support of his submissions, he has also relied upon the judgement of the Hon'ble Supreme Court dated 15/12/2021 passed in the case of Jaikam Khan Vs. State of U.P. passed in Criminal Appeal No.434-436 of 2020.11
9] Shri Abhay Saraswat, learned counsel appearing for the appellant Shailu @ Shailendra in Cr.A. No.158/2012 has also submitted that the appellant Shailendra has been falsely implicated only on the ground that prior in the day, he had had an altercation with the deceased regarding which, the appellant Shailendra had also lodged a police complaint Ex.P/26. The attention of this Court has also been drawn by Shri Abhay Saraswat to the deposition of PW/4 Sona page 96 para 14, PW/21 Dr. N.M. Unda who says that no fire arm injury has been suffered by the deceased, as also to the depositions of PW/5 Sanjay, PW/6 Manoj Yogi and the deposition of PW/9 Sanju para 2 and 17, as also the FSL report. 10] Shri Amit Tripathi, learned counsel appearing for the appellants Sonu @ J.K. and Amardeep in Cr.A. No.167/2012 has drawn the attention of this Court to deposition of PW/4 Sona page 204 para 10, PW/6 Manoj Yogi para 6 and 7. It is further submitted that there is no FSL report so far as the appellant Amardeep @ Machchi is concerned and only a belt has been seized from his possession whereas the injuries have been caused by hard and blunt objects to the deceased and it is also submitted that a crime scene where all the accused persons were holding deadly weapons, it is difficult to believe that the appellant Amardeep @ Machchi would take out his belt to assault the deceased. Counsel has also submitted that the identity of appellant Machchi is also doubtful as is apparent from the depositions of various witnesses.12
11] Shri Manish Sankhala, learned counsel appearing on behalf of the appellant Golu @ Goldi in Cr.A. No.187/2012 has submitted that the appellant was minor at the time of incident and has been falsely implicated in the case. The attention of this Court has also been drawn to the deposition of PW/1 Vikram the father of the deceased para 44. Deposition of PW/3 Sanni, the chance witness 37, PW/4 Sona PW/5 Sanjay page 110, PW/6 Manoj brother of the deceased para 1, 2, 3, 4 and 9. PW/9 Sanju, PW/14 Suman page 157 para 10 and the Ex.P/40 & 41 the FSL report and list of articles. 12] Shri M.K. Sharma, learned counsel appearing for the appellant Jitendra in Cr.A. No.247/2012, has submitted that the name of the appellant does not find place in the FIR. Counsel has also drawn the attention of this Court to Ex.P/3 Naksha Panchayatnama which was prepared at 00:30 hours which means that the incident took place on 10/07/2006. The attention of this Court has also been drawn to Naksha Mouka which was prepared at 07:00 am as also Ex.D/3 which is the non-cognizable report lodged by appellant Shailu, as also the deposition of PW/5 Sanjay. So far as the appellant Amardeep @ Machchi is concerned, Shri A.S. Rathore, learned counsel appearing for the appellant has also submitted that the appellant's identity itself is not established in the present case as PW/5 Sanjay has also referred to him as Machchi @ Sunil whereas his name is Amardeep.
13] On the other hand, learned counsel for the respondent/State has opposed the prayer and it is submitted that no illegality has been 13 committed by the learned Judge of the Trial Court in appreciating the evidence and convicting the appellants as aforesaid. Thus, it is submitted that the appeals be dismissed. Counsel has also relied upon the judgments of the Hon'ble Supreme Court in the case of Karan Singh Vs. State of U.P. and others reported in 2022 SCC Online SC 253, in the case of Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and another reported in (2013) 12 SCC 796, in the case of Susanta Das and others Vs. State of Orissa reported in (2016) 4 SCC 371, in the case of Kattukulangara Madhvan Vs. Majeed and others reported in (2017) 5 SCC 568, in the case of Charan Singh and others Vs. State of U.P. reported in (2004) 4 SCC 205, in the case of Lalji and others Vs. State of U.P. reported in (1989) 1 SCC 437 and in the case of Ranjit Singh and others Vs. State of M.P. reported in (2011) 4 SCC 336.
14] Heard learned counsel for the parties and perused the record. 15] From the record, this Court finds that the FIR Ex.P/5 was lodged by PW/5 Sanjay at 3:00 O'clock in the morning in respect of the incident which is said to have taken place on 00:30 hours of 11/07/2006. In the FIR, the complainant PW/5 Sanjay has named A-Goldi, A-Ramjane, A-Shailu, and A-Machchi as the assailants who were accompanied by other 5-6 accused persons. In support of its case, the prosecution has examined as many as 25 witnesses and no defence witness has been examined.
16] So far as the death of the deceased is concerned, his post- mortem has been conducted by PW/21 Dr. N.M. Hunda, in the post-
14mortem report Ex.P/28, Dr. Hunda has opined that the cause of death is said to be excessive bleeding and shock. A perusal of his deposition reveals that the deceased had suffered as many as 20 injuries and there are sub-injuries of certain injuries also, suffered by the deceased and most of the injuries were incised wounds or stab wounds on various parts of his body. There is no doubt about it that the deceased died a homicidal death.
17] So far as the culpability of the present appellants is concerned, the prosecution has examined eyewitnesses who were present on the spot including the complainant Sanjay as also wife, brother, mother and father of the deceased. Thus, instead of considering their statements in seriatim, we would examine the depositions of the prosecution witnesses in accordance with the order in which they have appeared in the incident. 18] PW/5 Sanjay is the person who had lodged the FIR Ex.P/5. In the FIR he has named A-Goldi and the other accused persons viz., A-Shailu, A-Ramjane and A-Machchi who came to his house along with other accued persons. Pw/5 is the landlord of the deceased Bablu @ Narendra. In his deposition in the court, he has stated that A-Goldi, A-Shailu, A-Ramjane, A-Machchi, and the other accused persons A-JD, A-Ranjeet, A-Pappi and another accused whose name he did not remember and who told his name to be A-Sonu in the Court were involved in the incident. It is stated by him that accused persons broke open the doors of his house and A-Goldi kept a sword on his neck and told him to stay put and thereafter 15 Goldi and Ramjane stayed with him whereas Shailu and Machchi @ Amardeep went upstairs to the room of deceased Bablu @ Narendra who was his tenant and from there, they dragged him out while beating him on their way out, and Goldi and Ramjane also assaulted him. A-Goldi and A-Shailu were having swords, A- Machchi was having a belt, A-Ramjane was having pipe and other accused persons were having knives and pipes. He has also stated that the deceased's wife has also witnessed the entire incident and Manoj, the son of deceased Bablu came to intervene but the appellants ran after him and subsequently when the people from the vicinity also came to the spot including the family members of the deceased Bablu, the accused persons fled the spot. Regarding A- Shailu, it is also stated that he assaulted the deceased on his forehead with the backside of a country made pistol. Deceased was taken to the hospital and was declared as brought dead. He has also admitted in para 7 of his deposition that he knows Shailu since last around 10 years as he is also his friend. He has admitted that till the deceased Bablu was dragged down from his room to the road, he was restrained in his room by the accused persons. He has also stated that he had shown the police the broken door, however, he has feigned ignorance as to why this fact is not mentioned in the spot map. He has also admitted that the entire incident took place for around 20 minutes. In para 23 he has also admitted that he was accompanied by deceased's brother Manoj and father Vikram to the police station; however, he himself lodged the report. He has 16 admitted that he informed the police that the deceased was also shot by Shailu as he thought that the deceased was fired upon by the accused persons but he was in fact assaulted by the butt of the gun. He has also stated that he had informed the police about the assault on the deceased by sword but he cannot say the reason why this fact is not mentioned in his police statement. He has denied that some unidentified persons had committed the offence who ran from the spot and because he had previous enmity with Shailu, he has falsely named the names as the assailants. He has specifically denied that he has been informed by the father of the deceased about identity of the accused persons and their names. In para 22, he has admitted that he knows A-Ranjeet since last around 6-7 years as he used to drive tempo with him as he used to drive a rented tempo whereas Ranjeet had his own tempo and for around 6 months, they have driven the tempo together and has denied that he has taken Ranjeet's name in the court on the asking of Vikram and his son Manoj. He has also admitted that he is well acquainted with deceased's son Manoj and his father Vikram and when he had gone to report the incident, Bablu's father Vikram was also with them. 19] PW/5 Sanjay has also admitted that at the time when he was lodging the report, Manoj did not ask him that he is missing the other persons' name also in the report. He has feigned ignorance as to why Ranjeet's name has not been mentioned in the FIR. He has also admitted that Manoj never told him that he has missed in naming Ranjeet in the FIR. He has also admitted that he did not 17 mention it in the police report that Shailu set on the chest of the deceased and hit on his forehead with the butt of the gun and why this fact has not been mentioned in the FIR, he does not know. He has also been suggested that he has mentioned this fact about Shailu hitting the deceased with the butt on his forehead only to corroborate the medical evidence. He has also admitted that he had mentioned in the police report that the deceased was also fired upon but subsequently when he came to know that there is no gunshot injury, he has changed his version. His attention is also drawn to the FIR Ex.P/5 wherein he has not mentioned that Shailu was also holding a sword in his hand and assaulted Bablu with it. His attention was also drawn to the fact that in the FIR, he has not mentioned that appellant Machchi was having belt in his hand at the time of incident. His attention is also drawn to the police report Ex.P/5, where he has not mentioned that Ramjane was holding a pipe and had assaulted the deceased with pipe. His attention was also drawn to the fact that in the FIR, it is not mentioned that when the deceased's brother Manoj came to intervene, the accused persons also ran after him. He has been suggested that the FIR has been lodged on the other day and the incident has not been witnessed by the deceased's wife and his brother to which he has denied.
20] Regarding appellant Amardeep @ Machchi, he has stated that in his police statement, he has mentioned the name of Machchi @ Sunil and if in his court statement, the alias of Machchi is not 18 mentioned as Sunil then he does not know the reason. Regarding JD @ Jitendra, he has stated that he had identified JD in the police station. He has admitted that the names which he has mentioned in the FIR and also subsequently, he knows them from before. He has admitted that he has not mentioned the name of JD, Ranjeet, Inder in FIR Ex.P/5 and Marg intimation P/6 as they had threatened him that they would also kill him. However, he has also been asked whether he has made any report against these persons that they tried to threatened him, to which, he has denied. This witness has stated that when he lifted Bablu to take him to the hospital, his cloths were also drenched in blood but the police has not seized his cloths. He has also admitted that the other three persons' cloths were also drenched in blood but police did not seize cloths of any of such persons. Regarding Sonu, he has admitted that at the time of lodging FIR, or in his police statement, he has not mentioned the name of Sonu. Thus, from his (PW/5 Sanjay's) deposition, with all the omissions and contrdictions,the names of A- Goldi, A-Shailu @Shailendra, A-Ramjane, A-Machchi can be extracted as the persons who were present on the spot, however so far as the A- Ranjeet, A-Inder, A-Vikram, A-Sonu@ JK, and Jitendra @JD are concerned, their presence is rather doubtful.
21] PW/4 Sona happens to be the wife of the deceased Bablu @ Narendra. She is the second person to have witnessed the entire incident in front of her eyes. In her statement recorded u/s.161 of Cr.P.C., she has only named A-Shailu and his friends but in court 19 she has deposed that she knows the appellants who were present in the Court and has correctly identified them, and in addition, it is also mentioned by her that there was one more boy who had come on the said night whose name is Goldi who is not present in the Court. She has specifically identified Shailu @ Shailendra, Machchi and Jitendra. She has also stated that her husband was dragged out of the house and at that time, her brother-in-law Manoj also came to the spot but after seeing him, accused persons ran after him and he ran away from the spot to his house and thereafter her father-in-law and other family members also came to the spot and at that time the accused persons ran away. She has also been cross examined by the defence regarding her religion, that she belongs to Muslim community to which she has denied. She has also admitted that on the date when the incident took place, her husband also had a dispute with the accused persons in the evening. She has admitted that in her police statement, she has not mentioned the name of JD @ Jitendra and Machchi because she did not know their names at that time because she was in a state of shock and was crying. She has admitted that the police has not identified JD @ Jitendra, Machchi and Goldi through her. In para 10 of her cross examination for appellant Machchi @ Amardeep, she has admitted that she knows Machchi @ Sunil who roams around the colony and has feigned ignorance that at the time of giving police statement, whether she has mentioned that Machchi @ Amardeep was holding a belt or not. She has admitted that she does not know that whether 20 Machchi's name is Amardeep or Sunil but she knows him to be Machchi only and she has also feigned ignorance as to why in her police statement, the name of Machchi @ Amardeep is not mentioned as one of the assailants.
22] On behalf of appellant Sunil @ Ramjane also, she has been suggested that she is from Muslim community, to which, she had denied as she has mentioned the name of her father to be Amarsingh. She has admitted that her marriage with deceased Narendra was solemnized around 2 years ago and they were residing at Mukharji Nagar and she does not know as to who are her neighbours. In para 17, she has admitted that the door was not totally broken but only its latch was broken. She has admitted that she did not see Shailu firing upon her husband. In para 20 in her cross examination on behalf of appellant accused Ranjeet, she has been asked about her brother-in-law Manoj's presence on the spot that he came running to the spot from his house and thereafter the accused persons also started running after him and her brother-in- law ran for his house which fact is not mentioned in her police statement. This witness has been cross examined to suggest that Manoj was also not present on the spot when the incident took place which is also apparent from the police statement of this witness in which she has not mentioned the name of Manoj and that the accused persons ran after him. She has also been suggested that she has mentioned the names of all those persons whose name she remembers. She was also not sure as to how many people came to 21 assault her husband. She has also been suggested that her husband was murdered by some persons on the street and thereafter a false complaint has been made against the accused persons. She has also admitted that the accused persons were not identified by her either in jail or any other place. In para 28, she has again identified the appellant Goldi, Inder and Vikram. She has also stated that Goldi had assaulted the deceased, her husband with a sword and the said three accused persons had also assaulted her husband in front of her and the appellant Goldi had a sword whereas the appellant Vikram and Inder were having iron rods in their hands. In para 30, she has admitted that presently her husband's name of Naushad Kureshi with whom she has solemnized Nikah and in Nikah, she has mentioned her name to be Ramzan Bee which is her name from her childhood only.
23] On behalf of appellant Goldi, she has been cross examined that she has not mentioned the name of Goldi in her police statement or that he assaulted with a sword, to which she has feigned ignorance. She has also been suggested that her husband's murder has been committed only because of her marriage with him as prior to her marriage with the deceased Bablu, she used to reside with some other person and now she is deliberately not naming the actual accused persons.
24] PW/1 Vikram happens to be the father of the deceased who reached on the spot as his other son Pw/6 Manoj, who had gone to meet some relatives, was coming towards his home in the night and 22 found that the appellants were assaulting Narendra @ Bablu. In his deposition, PW/1 Vikram has named Goldi, Ramjane, Machchi @ Amardeep, Jitendra, Pappi, Ranjeet, Jacky @ Salman as the persons who were present on the spot armed with various weapons and when he and the other persons residing nearby tried to save the deceased, the accused persons ran away from the spot. He has also stated that while leaving the spot, Shailu was also saying that Narendra is trying to be a big boss in the locality and he needs to be finished. This witness has also stated that he accompanied Bablu to the M.Y. Hospital along withPw/.. Manoj and Pw/5 Tinu @ Sanjay where he was declared as dead. This witness has not been able to identify Sunil @ Ramjane to whom he has identified as K.D. @ Jitendra, however, he has identified Machchi @ Amardeep, Shailu, K.D. @ Jitendra, Hanuman and Sonu. One other accused Vijay Singh has been identified by him by his aliases Pappi. Similarly, Ranjeet has also been correctly identified by him. He has also stated that accused Goldi who is not present is in juvenile Court. In the cross-examination, this witness has admitted that he and his son Bablu, the deceased have already faced externment proceedings and he has also been arrested under the provisions of National Security Act and also that his son used to run a grocery shop in addition to commission of crimes. He has admitted that it takes around 2-4 minutes to reach from his house to the house of the deceased. He has admitted that he did not see Shailu firing the pistol and has also admitted that the body of the deceased also had no gunshot injury, 23 however, he has stated that on his forehead, he saw an injury caused by the butt of the gun. He has admitted that he knows the appellant Shailu for many years and has also admitted that one day prior to the incident, Shailu had a dispute with the deceased and his sons Narendra, Manoj and Nitesh who had also assaulted Shailu at that time for which, Shailu had also lodged a report. He has denied that at the time of incident, Shailu was not present on the spot. 25] PW/6 Manoj is the brother of the deceased who arrived on the spot at the time of the incident, and as they (PW/1 Vikram and Sanjay PW/6 Manoj) took the deceased Bablu to the hospital they were accompanied by Pw/5 Sanjay. From the depositions of these three witnesses it is also clear that they also went to the police station to lodged the report which was lodged by Pw/6 Sanjay. It is also suggested to them that they also talked about the assailants in the hospital but when the FIR was lodged by Pw/6 Sanjay, they did not mention the names of other accused persons' presence apart from A- Goldi, A-Shailu @Shailendra, A-Ramjane and A-Machchi this is despite the fact that they also knew them from before. Admittedly, no test identification parade has been conducted to establish the identity of the accused persons.
26] In such circumstances, the question that falls for the consideration of this court is whether the other accused persons, other than those whose names are disclosed in the FIR were also involved in the case? On a close scrutiny of the depositions of Pw/1 Vikram, Pw/4 Sona, Pw/5 Sanjay and Pw/6 Manoj, this court 24 is unable to come to a conclusion that the presence of A- Goldi, A- Shailu @Shailendra, A-Ramjane and A-Machchi is established by the prosecution to be beyond reasonable doubt.
27] PW/3 Sanni and Pw/14 Suman happen to be the cousin of the deceased Bablu @ Narendra and his mother respectively. They also claim to reach on the spot at the time when it was taking place, and have claimed to have seen the accused persons committing the crime, but in the light of the testimonies of Pw/1 Vikram, Pw/4 Sona, Pw/5 Sanjay and Pw/6 Manoj who are also similarly or better placed to have witnessed the incident, their (Pw/3 and Pw/14's) testimonies do not inspire confidence as to the involvement of other appellants except A- Goldi, A-Shailu @Shailendra, A-Ramjane and A-Machchi. Pw/3 Sunny also appears to be a chance witness as according to him, he was present at Mukhargi Nagar at his Mama Vikram's house and at around 12 - 12:15 am in the night, when he was preparing his bed to go to sleep, at that time his Mama's son Manoj came running and informed that Bablu is being assaulted. In his cross examination, he is suggested that there was no reason for him to come to Vikram's house who happens to be his Mama and that he was not present in the area at the time when the incident took place. Whereas, Pw/14 Suman has admitted in para 12 of her deposition that she does not know the accused persons by their names but from their faces but she has also not been subjected to test identification and the mentioning of the names of all the 25 accused persons in her police statement also give reasonable doubt about the veracity of their statement.
28] Thus, from the aforesaid deposition, the presence of A- Goldi, A-Shailu @Shailendra, A-Ramjane and A-Machchi appears apparent on the spot. So far as the identity of A-Amardeep @Macchi is concerned, that whether his name was Amardeep @Machhi or Sunil @ Machhi is concerned, this court is of the considered opinion that as this accused has been rightly identified by Pw/5 Sanjay, and was also named in the FIR by him, it is hardly of any use to the A-Amardeep @ Machhi to contend that his name is Sunil and not Amardeep.
29] Regarding the juvenility of A- Goldi is concerned, his application M.Cr.C.No.11264/2021 has already been dismissed by this court by a separate order.
30] The FSL report is also inconclusive as usual.
31] In such facts and circumstance of the case, this Court is of the considered opinion that the prosecution has been able to prove the case of A- Goldi, A-Shailu @Shailendra, A-Ramjane and A- Machchi beyond reasonable doubt but so far as the A-Ranjeet, A- Indersingh, A-Vikram, A-JD@ Jitendra and A-Sonu@JK are concerned, it has failed to establish their presence positively on the spot.
32] Resultantly, the conviction of A- Goldi, A-Shailu @Shailendra, A-Ramjane and A-Machchi is hereby affirmed whereas, the conviction of A-Ranjeet, A-Indersingh, A-Vikram, A-
26JD@ Jitendra and A-Sonu @ JK is hereby set aside and they are acquitted of the charges levelled against them. Appellants Ranjeet, Indersingh and Vikram are already on bail, their bail bonds stand discharged. Appellants Jitendra and Sonu @ JK be released forthwith if not required in any other case. 33] Accordingly, Criminal Appeal No.158/2012 of appellant Shailu @ Shailendra, Criminal Appeal No.187/2012 of appellant Golu @ Goldi, Criminal Appeal No. 533/2012 of appellant Sunil @ Ramjane are hereby dismissed. However, Criminal Appeal No.167/2012 filed on behalf of appellants Amardeep @ Machchi and [email protected]. is partly allowed affirming the conviction of appellant Amardeep and acquitting the appellant Sonu @ J.K. from the charges levelled against him whereas, Criminal Appeal No.128/2012 of appellant Ranjeet Singh, Criminal Appeal No.129/2012 of appellants Inder Singh and Vikram, Criminal Appeal No.247/2012 of appellant Jitendra are hereby allowed.
(SUBODH ABHYANKAR) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
krjoshi
Digitally signed by KHEMRAJ JOSHI
Date: 2022.06.23 16:17:56 +05'30'